RAMA SHANKAR SINGH Vs. SHYAMLATA DEVI

JUDGEMENT

(1.) The plaintiffs, defendants 5 to 7 and the ancestor of defendants 8 to 13 were the sixteen anna proprietors of certain villages in district Shahbad By a registered deed dated October 3, 1944 they leased the forest rights in the villages to the defendants 1 and 2 for a period of 9 years ending Bhado 30, 1360 Fasli corresponding to September 2, 1953 at an annual rent of Rs. 16000/-. The plaintiffs had 6 annas share in the proprietary rights in the villages and Rs. 6000/- was fixed as their share of the annual rent. The defendant No. 3 was a transferee of a portion of lessees' interest from defendant 1. On September 3, 1954 the plaintiff instituted a suit claiming a decree against defendants 1 and 2 for Rs. 36,405/- on account of their share of the rent for1356 to 1360 Faslis and interest thereon at 1 per cent per annum. During the pendency of the suit, defendant 2 died and his heirs were substituted as defendants 2 and 2 (a). The Trial Court decreed the suit on contest against defendants 2 and 2 (a) and ex parte against defendants 1 and 3 with future interest and costs. On appeal, the High Court held that (1) as defendant 2 had only 4 anna share in the lessees' interest as mentioned in the lease deed and as he had acquired another one anna share in the lessees' interest subsequently, defendants 2 and 2 (a) were liable to pay only 5 annas share in the annual rent, that is to say, Rs. 1875/- per annum and defendants 1 and 3 were liable to pay the balance rent; (2) that as the lease deed granted a lease of forest rights, the suit was governed by Article 2 (b) (i) of Schedule III of the Bihar Tenancy Act, 1885 and consequently the suit in respect of rent for 1356 and 1357 Faslis was barred by limitation, and (3) in view of Section 67 of the Bihar Tenancy Act the plaintiffs could claim interest at the rate of 6 1/4 per cent per annum only. Accordingly the High Court allowed the appeal in part and passed a decree against defendants 2 and 2 (a) for 5 annas share of the rent for 1358 to 1360 Faslis and a separate decree against defendants 1 and 3 for the balance rent for those years with interest at 6 1/4 per cent per annum. The plaintiffs have filed the present appeal after obtaining a certificate from the High Court. The appellants challenge the correctness of all the findings of the High Court.

(2.) Clause 3 of the lease deed provided:

(3.) The High Court was right in allowing the defendant to raise the point of limitation, though the plea was not taken in the written statement. Under Section 184 of the Bihar Tenancy Act a suit instituted after the expiry of the period of limitation has not been pleaded. Learned Counsel for the appellants could not tell us what further evidence his clients could adduce on this point. In the circumstances, the absence of the plea of limitation in the written statement did not cause the appellants any prejudice.